THIRD SECTION

Application no. 1487/11 Ion POPOVSCHI against the Republic of Moldova lodged on 27 December 2010

STATEMENT OF FACTS

1. The applicant, Mr Ion Popovschi, is a Moldovan national, who was born in 1986 and lives in Chișinău. He is represented before the Court by Mr A. Croitor, a lawyer practising in Chişinău.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

A . The applicant ’ s arrest and alleged ill-treatment

3. On 7 April 2009 the applicant was walking towards his home at around 11-12 p.m. when he was arrested by the police. During the arrest he was hit with the automatic rifle at the back of his head and thrown to the ground, hitting it with his face. He lost consciousness and was then taken in a police car together with other young persons arrested that evening.

4. The record of the applicant ’ s arrest attested to the presence of bruises on his nose.

5. The applicant was taken to the Centru Police Station and ill-treated there by a number of officers. He received blows to his legs and his kidneys. After some thirty minutes of ill-treatment he was taken, together with twenty-four other persons, to a cell measuring 4x3 square metres. It was impossible to sit there, let alone sleep; it was tough to breathe as there was no access to fresh air; there was no toilet in the cell and nobody was allowed to go to the toilet until the next afternoon, some sixteen hours after the applicant ’ s arrest. As a result, some persons had to satisfy natural needs in a corner of the cell, which worsened the situation with the lack of fresh air. One of the persons detained in the cell apparently had broken ribs and suffered immensely; everyone had to suffer from being unable to help him since the police shouted and threatened anyone trying to ask for medical help for him.

6. During the night the applicant was taken to an office and made to sign some papers, without reading them. He saw other persons being beaten if they asked to read what they were signing or if they refused to sign. He later found out that he was signing declarations confirming that he had committed hooliganism.

7. On 9 April 2009 the applicant was taken to the General Police Directorate (“the GPD”). On 10 April 2009 investigating judge S. C. examined the investigator ’ s request to order the applicant ’ s detention pending trial, on the premises of the GPD. He partly accepted that request, ordering the applicant ’ s house arrest for twenty days.

8. While spending twenty days in house arrest, the applicant could not see a doctor. Moreover, he was afraid of retaliation and did not trust doctors from State institutions. On 7 July 2009 he went to the Memoria Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). On 30 September 2009 that centre issued an Extract of the medical file ( Extras din Fişa Medicală ) concerning the applicant ’ s examination. The medical experts who examined the applicant at that centre found that he had suffered cerebral trauma and developed intracranial hypertension; he had contusion of the soft tissue of his nose; he suffered from post-traumatic stress symptoms such as persistent return of memories of the events, avoiding behaviour, increased vigilance, anxiety and sleep disorders.

B . The applicant ’ s complaint of ill-treatment and investigation thereof

9. On 14 July 2009 the applicant complained to a military prosecutor about his ill-treatment by the police. During the verification of his complaint he was heard twice and was never involved in any other investigating measures, such as an identity parade in order to identify the officers who had ill-treated him.

10. On 9-12 November 2009 the applicant ’ s medical file from the Memoria centre were examined by a medical expert appointed by the prosecutor in order to verify the presence and nature of injuries on his body. The doctor concluded that no injuries had been established and that it was impossible to confirm the applicant ’ s claim that he had been ill-treated.

11. On the basis of the conclusion of the medical expert (see preceding paragraph) and having interviewed the applicant and the arresting officers, who all denied having ill-treated him, on 24 December 2009 a military prosecutor decided not to initiate a criminal investigation. He found that the applicant had never been detained in the GPD, as opposed to what he had declared, and that he had been arrested in another place than that indicated in his complaint. Moreover, on 8 April 2009 the applicant was subjected to a medical examination in order to establish whether he had alcohol in his blood. During that examination no injuries were noted on his body.

12. On 23 February 2010 the applicant ’ s lawyer asked the Prosecutor General ’ s Office to annul that decision. On 24 March 2010 that office rejected the request.

13. On 9 April 2010 the applicant ’ s lawyer challenged in court the decision of 24 December 2009. He relied on the findings of the Memoria centre and noted that the additional medical examination made at the prosecutor ’ s request had taken place several months after the events and without seeing the applicant. Moreover, the doctor ’ s finding of 8 April 2009 that the applicant did not have any injuries was not to be trusted at least because it clearly contradicted the arresting officers ’ note in the applicant ’ s record of arrest that he had bruises on his nose. The lawyer finally noted that the prosecutor had been able to verify certain information, but not to carry out investigative actions such as identity parades or cross-examinations, which could only be carried out within the framework of a criminal investigation. Since no investigation had been started in the applicant ’ s case, the prosecutor was limited in his actions.

14. On 30 June 2010 the investigating judge from the Buiucani District Court rejected the applicant ’ s complaint as unfounded, in the absence of evidence that the applicant had been ill-treated.

15. On 9 February 2010 the criminal proceedings in which the applicant was accused of hooliganism and which had been the reason for his arrest were discontinued since it had not been proved that the applicant had committed any unlawful action.

C . Proceedings concerning the applicant ’ s complaint about unlawful arrest and detention

16. On 19 August 2009 the applicant made a criminal complaint about his unlawful arrest and detention. In particular, he complained about the fact that he had been initially detained for having committed an administrative offence. However, he should not have been arrested even if he had committed the offence since he had identity documents. The officers should have recorded his identity for subsequent examination of the case by the court and should have released him thereafter. At the same time, the administrative detention of a person could not exceed three hours, yet he had been held for twelve hours before being charged with a criminal offence. Moreover, the applicant claimed that he had never been brought before a judge to examine the administrative charges against him. He argued that his administrative arrest had been a pretext for his detention, during which the police fabricated a criminal case against him, contrary to Article 5 of the Convention.

17. The applicant ’ s complaint was forwarded from one prosecutor ’ s office to another on seven different occasions.

18. On 15 July 2010 the applicant complained to the Rîșcani District Court about the inactions of the prosecution. This complaint was also forwarded from one court to another on two occasions.

19. On 27 September 2010 the Rîșcani District Court adopted a decision whereby it ordered the Prosecutor General ’ s Office to examine the applicant ’ s complaint and adopt a lawful decision.

20. On 14 December 2010 the Prosecutor General ’ s Office decided not to initiate a criminal investigation in the absence of any evidence that a crime had been committed. The prosecutor established, inter alia , that the officer who had registered the applicant ’ s arrest could not determine who had been the arresting officers. The applicant was not informed of that decision until 29 June 2011, when the Prosecutor General ’ s Office replied to the applicant ’ s lawyer ’ s letter dated 14 June 2011 inquiring about the fate of the case.

21. On 21 September 2011 the applicant challenged in court the decision of 14 December 2010.

22. On 27 September 2011 the Rîșcani District Court rejected that complaint as unfounded.

COMPLAINTS

23. The applicant complains under Article 3 of the Convention that he was ill-treated by the police during his arrest and detention and subjected to inhuman and degrading treatment.

24. He also complains, under the same provision, of the insufficiency of the verification of his complaint, in the absence of a proper investigation.

25. The applicant complains under Article 5 § 1 of the Convention that he was detained unlawfully under false administrative charges before being charged with a criminal offence. He also complains, under Articles 5 § 1 and 6 § 1, that he was not brought promptly before a judge and that the courts ’ examination of his complaints against the prosecutor ’ s decisions not to start a criminal investigation concerning his unlawful arrest had been biased and taken an excessively long time.

26. He finally complains under Article 13 of the Convention that he had no remedies in respect of his complaints under Articles 3 and 5.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 3 of the Convention? In particular:

(a) Was the applicant ill-treated during his arrest and detention or subjected to inhuman or degrading treatment?

(b) Has there been an effective investigation, within the meaning of Article 3, into his allegations of ill-treatment?

2. Has there been a violation of Article 5 § 1 of the Convention? In particular, was the applicant ’ s administrative arrest and detention based on a “reasonable suspicion of having committed a crime” within the meaning of Article 5? W as his detention after the first three hours “lawful” within the meaning of the same provision?

3. Has there been a violation of Article 13 of the Convention taken in conjunction with Articles 3 and/or 5 of the Convention?